COMMON CAUSE V.

UNION OF INDIA
The right to life and personal liberty is one of the most significant fundamental rights that helps
in the exercise of other fundamental rights. It also acts as a facilitator of other fundamental
rights. It particularly includes their right not to be killed by another person. But the question is
whether a person’s right to life includes the right to die.
This question was answered in the case of Common Cause v. Union of India (2018). In the year
2005, Common Cause a registered society for the common welfare of people filed a writ petition
under Art.32 of the Indian Constitution to legalize Passive Euthanasia and to legally validate
living wills. In this regard, the Supreme Court of India held that the right to die with dignity is a
fundamental right and a part of Art.21(Protection of life and personal liberty). The Bench further
held that passive euthanasia and a living will are legally valid. The Court issued detailed
guidelines in this regard.
Prior to this, a five Judge Bench of Supreme Court in Gian Kaur v. State of Punjab held that
both euthanasia and assisted suicide are unlawful in India and overruled the judgement given in
the case of P. Rathinam v. Union of India where the Court held that the right to life under
Article 21 of the Constitution does not include right to die. But later in Aruna ramchandra
Shanbaug v. Union of India the Supreme Court held that passive euthanasia can be allowed
under certain exceptional circumstances under the strict monitoring of the Court.

PASSIVE AND ACTIVE EUTHANASIA

Euthanasia is the practice of ending a patient’s life in order to relieve their suffering. Normally,
the patient in concern would have a serious illness or be in excruciating pain. Euthanasia would
allow the individual to have a comparatively ‘good death,’ as opposed to sentencing them to a
slow, excruciating, or indignified demise.
Active euthanasia refers to the act of killing an individual by employing any active means of
death. Some of instances of active euthanasia involve injecting an individual with a fatal drug
dose, leading to death. Due to the means employed under active euthanasia, it is sometimes also
referred to as “aggressive euthanasia.”
Passive euthanasia refers to a process where an individual is intentionally obstructed from living
life. Whenever any artificial life support is withdrawn, such as a ventilator or feeding tube,
leading to the death of an individual, it comes under the ambit of passive euthanasia.

PETITIONER: Common Cause – Non Profit Organisation based in Delhi

RESPONDENT: Ministry of Health and Family Welfare

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DATE OF JUDGMENT: decided on 9th March, 2018

BACKGROUND OF THE CASE

The question of whether the freedom to die is a fundamental right guaranteed under Article 21
was first put before the Supreme Court in P. Rathinam v. Union of India (1994). In this
case, Section 309 of the Indian Penal Code, 1860, i.e., attempting to commit suicide, was
challenged on the ground of being against fundamental rights.
Two individuals, namely, P. Rathinam and Nagbhushan Patnaik, filed two Writ Petitions under
Article 32 of the Constitution which were decided by a two- Judge Bench. The writ petitions
assailed the constitutional validity of Section 309 of the Indian Penal Code (IPC) contending that
the same is violative of Articles 14 and 21 of the Constitution. The Court posed 16 questions.
The relevant ones read thus:-
(1) Has Article 21 any positive content or is it merely negative in its reach?
(2) Has a person residing in India a right to die?
(12) Is suicide against public policy?
(13) Does commission of suicide damage the monopolistic power of the State to take
life?
(14) Is apprehension of constitutional cannibalism‘ justified?
(15) Recommendation of the Law Commission of India and follow-up steps taken, if
any.
(16) Global view. What is the legal position in other leading countries of the world
regarding the matter at hand?
Answering all the questions, the Court declared Section 309 IPC ultra vires and held that it
deserved to be effaced from the statute book to humanize our penal laws.

Invoking the ruling in Maruti Shripati Dubal v. the State of Maharashtra (1987), the Court
determined that Section 309 of the Indian Penal Code was unconstitutional because fundamental
rights can have both constructive as well as detrimental aspects. It stated that the right to life
would also include the right to die.

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Later, in Gian Kaur v. the State of Punjab 1996, a constitutional issue regarding Section 306 of
the Indian Penal Code, 1860, which deals with abetment to suicide, was brought up before the
Apex Court.
In the said case, the appellants were convicted by the trial Court under Section 306 IPC and the
conviction was assailed on the ground that Section 306 IPC is unconstitutional and to sustain the
said argument, reliance was placed on the authority in P.Rathinam wherein Section 309 IPC was
held to be unconstitutional being violative of Article 21 of the Constitution. It was urged that
once Section 309 IPC had been held to be unconstitutional, any person abetting the commission
of suicide by another is merely assisting in the enforcement of the fundamental right under
Article 21 and, therefore, Section 306 IPC penalizing abetment of suicide is equally violative of
Article 21. The two-Judge Bench before which these arguments were advanced in appeal
referred the matter to a Constitution Bench for deciding the same. In the course of arguments,
one of the amicus curiae, Mr. F.S. Nariman, learned senior counsel, had submitted that the
debate on euthanasia is not relevant for deciding the question of constitutional validity of Section
309 and Article 21 cannot be construed to include within it the so-called right to die since Article
21 guarantees protection of life and liberty and not its extinction.
Thereafter, the Court proceeded to state:-
A question may arise, in the context of a dying man who is terminally ill or in a persistent
vegetative state that he may be permitted to terminate it by a premature extinction of his life in
those circumstances. This category of cases may fall within the ambit of the right to die with
dignity as a part of right to live with dignity, when death due to termination of natural life is
certain and imminent and the process of natural death has commenced. These are not cases of
extinguishing life but only of accelerating conclusion of the process of natural death which has
already commenced. The debate even in such cases to permit physician-assisted termination of
life is inconclusive. It is sufficient to reiterate that the argument to support the view of permitting
termination of life in such cases to reduce the period of suffering during the process of certain
natural death is not available to interpret Article 21 to include therein the right to curtail the
natural span of life.
In view of the aforesaid analysis and taking into consideration various other aspects, the
Constitution Bench declared Section 309 IPC as constitutional.
The Court held that the "right to live with human dignity" cannot be construed to include within
its ambit the right to terminate natural life, at least before the commencement of the process of
certain natural death. It then examined the question of validity of Section 306 IPC. It accepted
the
submission that Section 306 is constitutional.

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The Court made a distinction between the “right to die” and the “right to die with dignity” by
citing the House of Lords ruling in Airedale National Health Service Trust v. Anthony
Bland (1992). A person’s natural death process has already started when they are in a permanent
vegetative state or are terminally ill, and without life support, death is unavoidable.
The Court addressed the question of allowing euthanasia for the first time in the case of Aruna
Ramchandra Shanbaug v. Union of India (2011).
When Aruna Shanbaug was viciously raped and suffered injuries that rendered her in a
permanently vegetative state, she was working as a nurse at King Edward Memorial Hospital in
Mumbai. For a very long time, she received nursing care from the hospital staff, but her
condition did not get any better. Aruna Shanbaug’s euthanasia request was made on her behalf
by social activist Pinki Virani. However, it was determined that she lacked the legal authority to
make the request because she could not be granted the status of a close friend.
However, the two-judge Bench went ahead and made a decision, citing Airedale once more as
well as other international legal precedents, and concluded that, under certain conditions, passive
euthanasia might be permitted for patients who are terminally ill or in a persistent vegetative
state. Recognising the patient’s autonomy, the Court decided that if the individual is aware and
competent to provide approval, their opinion must be considered; otherwise, at the very least, a
close friend’s view is required, and they should make the same decision as the individual would
have if he or she was in a conscious state. After that, the case would be brought before the High
Court, where a division bench would need to assemble a group of three qualified doctors to
examine the patient in question.
Additionally, it was opined that these rules should be followed until Parliament passes any
legislation relating to the matter.

FACTS OF THE CASE

In 2005, a registered NGO filed PIL in the Supreme Court under Art.32 of the Indian constitution
{Right to Constitutional Remedies}to legalize living will and passive euthanasia. Prior to this the
registered society wrote letters to ministry of law and justice, ministry of health and family
welfare with regard to passive euthanasia. The petitioners received no response from the
government and thus filed the PIL. The petitioner’s contended that the right to live with
dignity is a person’s right till his death so it can be extended to include the right to have a
dignified death. And that the modern technology has given rise such a situation whereby life of
the patient is unnecessarily prolonged causing distress and agony to the patient and his relatives.
The petitioners further contended for legalizing living wills whereby a person undergoing
persistent pain and suffering can write about the medical treatment and authorize the family to
stop such treatment.

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ISSUES:
 Whether Article 21 of the Constitution which guarantees the Right to Life includes the
Right to Die?
 Whether passive euthanasia should be permitted on the living will of patient?
 Whether there is any difference in passive euthanasia and active euthanasia?
 Whether an individual has any right to refuse medical treatment including withdrawal
from life saving devices

ARGUMENTS BY THE PETITIONERS

 Every individual has a right to self-determination, and thus should be permitted to choose
their own fate.
 The modern medical technology has found out so many drugs and medicines that
unnecessarily prolong life of causing a lot of distress and agony to the patients and
his/her relatives thereof.
 It is better to die rather than being under persistent pain and suffering using medication
that does not cure but prolongs the life of patients.
 In cases of incurable, degenerative, disabling or debilitating condition a person should be
allowed to die in dignity as in majority of the cases the mercy petition is filed by the
sufferers, of the family members or any such caretakers. The burden upon the family is so
huge and cuts across various domains such as financial, emotional, time, physical, mental
and social aspects.
 Right to refuse medical treatment is well recognized in law, including medical treatment
that sustains or prolongs life. The right to renounce treatment gives a way for passive
euthanasia.
 Euthanasia in terminally ill patients provides an opportunity to advocate for organ
donation. This, in turn, would help many patients suffering organ failure waiting for
transplantation. Passive euthanasia not only gives an individual the ‘Right to die ‘for the
terminally ill, but also ‘Right to life‘for the organ-needy patients.

ARGUMENTS BY THE RESPONDENTS

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The counter arguments had been filed by the Union of India. And states that a private
member bill and 241st law commission report has submitted its report on terminally ill
patients(Protection of Patients and Medical Practitioner) Bill 2006, but the Ministry of Family
and Health Welfare was not in support due to following reasons-
1. Hippocratic oath is against voluntary intentional killing of patients. It is the oath taken by
Doctors formerly taken before beginning medical practice.
2. Progression of medical science to give relief from pain, suffering, rehabilitation, and treatment
of so-called disease will suffer a setback.
3. An individual may think of die at a certain point in time, his/her wish may not last long and
the possibility of a u-turn is always present. So it can be taken as depressing mental stress and
nothing else.
4. Suffering is a state of mind which varies from person to person and place to place. As we all
know that every person is unique in its nature so it varies.
5. Improvements in medical science has made many impossible, possible for cancer and other
terminal illness.
6. It can’t be neglected that a person suffering from mental illness wishes euthanasia may be
treated by good psychiatrists.
7. A serious question arises in this scenario can a doctor declare whether a patient’s disease is
incurable by their experience or academic expertise.
8. Medical officers who will conduct euthanasia could suffer from various serious psychological
mental pressure and trauma. So this solution creates or provides another big problem.

JUDGMENT
The judgement by the Apex Court included two opinions of the judges, namely –
 Majority opinion
 Concurring opinion
The majority opinion was provided by the then Chief Justice of India – Justice Dipak Misra. The
majority opinion was also cited on behalf of Supreme Court Judge Ajay Manikrao Khanwilkar.
On the other hand, a concurring opinion was provided by Justice Dhananjaya Yeshwant
Chandrachud.

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The Court noted the position of euthanasia with reference to Section 306 (abetment of suicide)
and Section 309 (attempt to commit suicide) of the IPC, inasmuch as, even allowing passive
euthanasia may come in conflict with the aforesaid provisions which make such an act a crime.
The Court went into the vexed question as to who can decide whether life support should
be discontinued in the case of an incompetent person, e.g. a person in coma or PVS. The
Court pointed out that it was a vexed question, both because of its likely misuse and also because
of advancement in medical science.This is an extremely important question in India because of
the unfortunate low level of ethical standards to which our society has descended, its raw and
widespread commercialisation, and the rampant corruption, and hence, the Court has to be very
cautious that unscrupulous persons who wish to inherit the property of someone may not get him
eliminated by some crooked method.
It held that passive euthanasia would be permissible when a person is ‘dead’ in clinical
sense. It chose to adopt the standard of ‘brain death’, i.e. when there is an ‘irreversible cessation
of all functions of the entire brain, including the brain stem’. The Court took note of President’s
Committee on Bioethics in the United States of America which had come up with a new
definition of ‘brain death’ in the year 2008, according to which a person was considered to be
braindead when he could no longer perform the fundamental human work of an organism. Three
such situations contemplated in that definition are the following:
“(1) openness to the world, that is receptivity to stimuli and signals from the surrounding
environment,
(2) the ability to act upon the world to obtain selectively what it needs, and
(3) the basic felt need that drives the organism to act ... to obtain what it needs.”
The Court held that when the aforesaid situation is reached, a person can be presumed to be
dead.

Taking a clue from the judgment in Vishaka and Others v. State of Rajasthan and Others
1997, the Court laid down the law, while allowing passive euthanasia, i.e. the circumstances
when there could be withdrawal of life support of a patient in PVS. The court stated:
A decision has to be taken to discontinue life support either by the parents or the spouse or
other close relatives, or in the absence of any of them, such a decision can be taken even by a
person or a body of persons acting as a next friend. It can also be taken by the doctors attending
the patient. However, the decision should be taken bona fide in the best interest of the patient.

The court further stated:

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(ii)“....The “right to life” including the right to live with human dignity would mean the existence
of such a right up to the end of natural life. This also includes the right to a dignified life up to
the point of death including a dignified procedure of death. In other words, this may include the
right of a dying man to also die with dignity when his life is ebbing out. But the “right to die”
with dignity at the end of life is not to be confused or equated with the “right to die” an unnatural
death curtailing the natural span of life.it was observed that “even though it is not necessary to
deal with physician assisted suicide or euthanasia cases”; the Constitution Bench has neither
considered the concept of euthanasia nor has laid down any ratio approving euthanasia.

At best, the Constitution Bench noted a difference between cases in which physician decides not
to provide or to continue to provide for medical treatment or care and those cases where he
decides to administer a lethal drug activity to bring his patient’s life to an end.

Shri Arvind Datar, learned senior counsel has in its written submissions referred to certain
aspects, which may be kept in mind while formulating guidelines for advance medical directive,
which are as follows:
Only adult persons, above the age of eighteen years and of sound mind at the time at which the
advance directive is executed should be deemed to be competent. This should include persons
suffering from mental disabilities provided they are of sound mind at the time of executing an
advance directive.
b) Only written advance directives that have been executed properly with the notarised signature
of the person executing the advance directive, in the presence of two adult witnesses shall be
valid and enforceable in the eyes of the law. The form should require a reaffirmation that the
person executing such directive has made an informed decision. Only those advance directives
relating to the withdrawal or withholding of life− sustaining treatment should be granted legal
validity. The determination that the executor of the advance directive is no longer capable of
making the decision should be made in accordance with relevant medical professional
regulations or standard treatment guidelines, as also the determination that the executor's life
would terminate in the absence of life− sustaining treatment. The constitution of a panel of
experts may also be considered to make this determination. The use of expert committees or
ethics committees in other jurisdictions is discussed at Para 28 of these written submissions.
c) Primary responsibility for ensuring compliance with the advance directive should be on
the medical institution where the person is receiving such treatment.

d) If a hospital refuses to recognise the validity of an advance directive, the relatives or next
friend may approach the jurisdictional High Court seeking a writ of mandamus against the
concerned hospital to execute the directive. The High Court may examine whether the
directive has been properly executed, whether it is still valid (Le, whether or not

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circumstances have fundamentally changed since its execution, making it invalid) and/or
applicable to the particular circumstances or treatment.

e) No hospital or doctor should be made liable in civil or criminal proceedings for having
obeyed a validly executed advance directive.

f) Doctors citing conscientious objection to the enforcement of advance directives on

the grounds of religion should be permitted not to enforce it, taking into account
their fundamental right under Article 25 of the Constitution. However, the hospital
will still remain under this obligation.dvance directive.

CONCLUSIONS:
From the above discussions, we arrive on following conclusions:−
(i) The Constitution Bench in Gian Kaur's case held that the “right to life: including right to live
with human dignity” would mean the existence of such right up to the end of natural life, which
also includes the right to a dignified life upto the point of death including a dignified procedure
of death. The above right was held to be part of fundamental right enshrined under Article 21 of
the Constitution which we also reiterate.
(iii) The Constitution Bench, however, noted a distinction between cases in which physician
decides not to provide or continue to provide for treatment and care, which could or might
prolong his life and those in which he decides to administer a lethal drug even though with object
of relieving the patient from pain and suffering. The later was held not to be covered under any
right flowing from Article 21. Thus, the law of the land as existing today is that no one is
permitted to cause death of another person including a physician by administering any lethal
drug even if the objective is to relieve the patient from pain and suffering.
(v) An adult human being of conscious mind is fully entitled to refuse medical treatment or to
decide not to take medical treatment and may decide to embrace the death in natural way.
(vi) Euthanasia as the meaning of words suggest is an act which leads to a good death. Some
positive act is necessary to characterise the action as Euthanasia. Euthanasia is also commonly
called “assisted suicide” due to the above reasons.
(vii) The court is of the opinion that the right not to take a life saving treatment by a
person, who is competent to take an informed decision is not covered by the concept of
euthanasia as it is commonly understood but a decision to withdraw life saving treatment
by a patient who is competent to take decision as well as with regard to a patient who is not
competent to take decision can be termed as passive euthanasia, which is lawful and legally
permissible in this country.

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(viii) The right of patient who is incompetent to express his view cannot be outside of fold of
Article 21 of the Constitution of India.
(ix) We also are of the opinion that in cases of incompetent patients who are unable to take an
informed decision, “the best interests principle” be applied and such decision be taken by
specified competent medical experts and be implemented after providing a cooling period to
enable aggrieved person to approach the court of law.
(x) An advance medical directive is an individual’s advance exercise of his autonomy on the
subject of extent of medical intervention that he wishes to allow upon his own body at a future
date, when he may not be in a position to specify his wishes. The purpose and object of advance
medical directive is to express the choice of a person regarding medical treatment in an event
when he looses capacity to take a decision. The right to execute an advance medical directive is
nothing but a step towards protection of aforesaid right by an individual.
(xi) Right of execution of an advance medical directive by an individual does not depend on any
recognition or legislation by a State and we are of the considered opinion that such rights can be
exercised by an individual in recognition and in affirmation of his right of bodily integrity and
self−determination.
In view of our conclusions as noted above the writ petition is allowed in the following
manner:
(a) The right to die with dignity as fundamental right has already been declared by the
Constitution Bench judgment of this Court in Gian Kaur case (supra) which was reiterated
by the court in this case.
(b) An adult human being having mental capacity to take an informed decision has right to
refuse medical treatment including withdrawal from life saving devices.
(c) A person of competent mental faculty is entitled to execute an advance medical directive
in accordance with safeguards as referred to above.

LIVING WILL JUDGMENT

Although the 2018 SC order recognises passive euthanasia, the procedure on living wills has
been seen as time-consuming. The modification order was passed
by a Constitution Bench of Justices K.M Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy,
and C.T. Ravikumar that was considering an application by the Indian Council for Critical Care
Medicine. The order was dictated by the bench on January 24.

Advance directives are legal documents that extend a person’s autonomy and control over their
healthcare decisions in the event they become incapacitated.
In simpler terms, an advance directive ensures that the wishes of the executor are honoured, even
when they are incapable of making a decision or their decision making capability is severely
impaired.

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Currently, the law states a living will should be signed in the presence of two attesting witnesses
and affirmed by a judicial magistrate. This requirement, the applicants argued, has made the
process cumbersome and prayed if the same be struck down. It is sufficient for an advanced
directive to be attested before a notary or a gazetted officer. The requirements for it to be
countersigned or preserved by a judicial magistrate has been dispensed with.

The judicial magistrate was required to forward a copy of the document to the registry of the
jurisdictional district court, which would have to retain the document in the original format. This
requirement has been deleted now.

earlier, The judicial magistrate was required to inform the immediate family members of the
executor and their family physician, if any.
Now, The executor has to hand over a copy of the advance directive to the designated
decisionmaker(s) and the family physician, if any.

In case the executor — that is, the person for whom the will is made — becomes terminally ill,
a doctor overseeing treatment is mandated to constitute a board of three experts. The experts
must be from the fields of general medicine, neurology, psychiatry, oncology, cardiology, or
nephrology with at least 20 years of experience in the medical field. The medical board will
decide whether to certify whether to carry out the instructions in the living will.
Citing difficulty in finding doctors with such a long period of experience, especially in rural
areas, the modification sought was to reduce the requirement of minimum experience to 5
years. This board will provide its opinion preferably within 48 hours of the case being
referred to it.

However, this is only a preliminary opinion — once the hospital board grants permission, it asks
the appropriate district collector for its sanction.
The collector will form a medical board comprising the chief district medical Officer and three
expert doctors. If the board agrees with the hospital’s findings, the decision will be
communicated to the appropriate judicial magistrate before the decision is implemented.
While anyone over age 16 can make a living will in India, registering such a will has proven to
be an arduous task.
It is this procedure the that court seeks to simplify. During its hearings, the court has said that the
stringent requirements currently needed for the “living will” may not be possible to follow.

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